unregistered hiba gift . cancelled by supreme court

سپریم کورٹ نے نچلی عدالتوں کے فیصلوں کو مندرجہ ذیل بنیادوں پر کالعدم قرار دیا۔

1. **گفٹ ڈیڈز کی درستگی ثابت کرنے میں ناکامی:** مدعا، محترمہ۔ گل بی بی، دو گفٹ ڈیڈز کی صداقت اور درستگی کو مناسب طور پر ثابت کرنے میں ناکام رہی۔ اعمال غیر رجسٹرڈ تھے، اور جواب دہندہ نے اصل دستاویزات یا ان کی درستگی کی حمایت کے لیے کافی ثبوت پیش نہیں کیے تھے۔

2. **شواہد کو غلط پڑھنا اور نہ پڑھنا:** نچلی عدالتوں کے فیصلوں کو اہم شواہد کو غلط پڑھنے اور نہ پڑھنے کا سامنا کرنا پڑا۔ عدالتوں نے اصل دستاویزات کی عدم تیاری اور گواہوں کی شہادتوں سے متعلق مسائل پر مناسب غور نہیں کیا۔

3. **قبضے کی منتقلی کے ثبوت کی کمی:** فراہم کردہ ثبوت مناسب طور پر یہ ظاہر نہیں کرتے تھے کہ ایک درست تحفہ کے لیے شرائط—پیشکش، قبولیت، اور قبضے کی فراہمی—پورے کیے گئے تھے۔

4. **گواہوں کی ناکافی جانچ:** کلیدی گواہوں، بشمول وہ لوگ جنہوں نے گفٹ ڈیڈز کی تصدیق کی، جانچ نہیں کی گئی یا ان کی موجودگی میں دستاویزات کے نفاذ اور قانونی حیثیت کی تصدیق نہیں کر سکے۔

سمری میں، سپریم کورٹ نے پایا کہ نچلی عدالتوں نے گفٹ ڈیڈز کے حوالے سے شواہد کا صحیح اندازہ نہیں لگایا اور اس طرح وہ غلط نتائج پر پہنچیں۔

Civil Appeal No. 194-P of 2010

(on appeal from the judgment of Peshawar High Court,

Peshawar, dated 24.11.2008 passed in C.R No.1575/2004)

Mst. Saadia

…Appellant

VERSUS

Mst. Gul Bibi

…Respondent

For the appellant:

Mr. Abdul Sattar Khan, ASC.

Mr. M. Ajmal Khan, AOR.

For the respondent:

Mr. Muhammad Shoaib Khan, ASC.

Mr. Muhammad Zahoor Qureshi, AOR.

Date of hearing:

15.12.2015

JUDGMENT

Anwar Zaheer Jamali, C.J. – In respect of a house as

detailed in the heading of the plaint in Suit No.32/1, bearing No.923,

situated at Mohallah Shah Faisal Kochi Bazar, Chowk Nasir Khan,

Peshawar City (hereinafter referred to as “suit house”), on 21.1.2002,

respondent through her brother and special attorney had instituted a

suit for declaration and permanent injunction against the appellant

with the following prayer:-

The claim of respondent in respect of the suit house was

based on two gift deeds dated 21.7.1986 and 02.8.1995, Ex.PW-1/1 and

PW-1/2 respectively. As per the earlier gift of 1986, purportedly Mst.

Fehmida Begum wife of Abdul Majeed Khan, who owned the suit

property through registered deed dated 17.1.1977, had gifted the suit

house to her brother Mirza Rab Nawaz, who was husband of the

respondent, while by second gift deed dated 02.8.1995, said Mirza Rab

Nawaz had purportedly gifted the suit house in favour of his wife, the

respondent.

In her written statement, the appellant categorically

denied such claim of respondent and disputed the genuineness of both

the purported gift deeds produced and relied upon by the respondent

to establish her title over the suit house. She also disclosed other

relevant facts about the legal heirs/brothers of Mst. Fehmida Begum,

and her own relationship with the respondent, being her only paternal

niece (daughter of her deceased husband’s brother). The appellant

further disputed the maintainability of the suit on various legal grounds,

as shown in the plaint.

Upon divergent pleadings of the parties, as noted above,

the trial Court of learned Civil Judge, Peshawar, framed six issues, out of

which issue No.5 was the crucial issue for determination, which related

C.A No.194-P/2010.

to the genuineness or otherwise of the two purported gift deeds ExPW1/1 and PW1/2, relied by the respondent to claim her exclusive title

over the suit house.

At the stage of evidence, the respondent had examined

five witnesses including herself while the appellant had examined only

her mother in law and attorney. Besides, another witness was

examined by the Court as CW-1/1, who was the handwriting expert, to

whom Ex-PW1/1 and some other documents purportedly bearing

signatures/thumb impression of Mst. Fehmida Begum were sent for

comparison of her signature/thumb mark over Ex-PW1/1.

The Civil Judge, Peshawar at the conclusion of proceedings

in the suit, vide judgment dated 30.7.2004 decreed the suit in favour of

respondent. This judgment was challenged by the appellant through an

appeal under section 96, CPC filed before the Court of 2nd Additional

District Judge, Peshawar on 29.9.2004, which was dismissed by the first

appellate Court vide its judgment dated 18.11.2004.

These concurrent findings of the two Courts below were

then challenged by the appellant in Revision Petition No.1575/2004,

filed before the Peshawar High Court, Peshawar on 15.12.2004, which

was finally heard and dismissed vide impugned judgment dated

24.11.2008. Against these concurrent findings of the three Courts

below, when Civil Petition for leave to appeal was filed by the

appellant, leave was granted in terms of the order dated 06.4.2010,

which reads as under:-

C.A No.194-P/2010.

“A suit for declaration and perpetual injunction was filed by

Mst. Gul Bibi (respondent) against Mst. Saadia (the petitioner).

Respondent/plaintiff on the basis of un-registered Hiba claimed to be

owner in possession of the suit property. Also pleaded that

petitioner (real niece of the real owner of the house) had no right or

interest in view of Hiba. Contesting written statement was filed by

the petitioner. Issues were framed. Evidence was recorded by the

learned trial Judge. The suit was decreed and appeal of the

petitioner-defendant was dismissed. Her Civil Revision also failed

before the High Court. Hence the present petition for leave to

appeal.

Learned ASC for the petitioner raised the following

questions:-

(i)

As to whether the two Hiba namas could be legally

relied upon without due registration in accordance

with Section 17 of the Registration Act. And as to

whether un-registered Hiba-namas were admissible

under Section 49 of the Registration Act ibid;

(ii)

Whether the learned Courts below should have legally

examined the above questions even if petitioner had

failed to properly raise the same in her written

statement or in the memo of appeal; and

(iii)

As to whether the respondent/plaintiff succeeded in

proving execution of Hiba namas and making of Hiba

thereof in terms of law;

The above questions require consideration, leave is granted.”

We have heard the arguments of learned ASC for the

appellant. He has briefly stated relevant facts of the case forming

background of this litigation, particularly with reference to the legal

heirs of Mst. Fehmida Begum, wife of Abdul Majeed, the original owner

of suit house vide registered deed dated 17.1.1977, who died issueless,

having five brothers, Mirza Mushtaq, Mirza Nisar, Mirza Abdul Latif,

Mirza Nazir Ahmed and Rab Nawaz. Learned ASC submitted that out of

C.A No.194-P/2010.

them, three had died issueless, while it was only Mirza Nisar, the fourth

brother, who had one daughter Mst. Saadia, the present appellant, who

was minor at the time of death of Mst. Fehmida Begum. But in order to

deprive her of her legitimate claim in the suit house, being the only

descendant from the brothers of Mst. Fehmida Begum, two fraudulent,

fabricated and forged gift deeds were prepared/managed. He argued

with vehemence that surprisingly both these deeds were attested by

four witnesses each, but except one, no other marginal witness of the

gift deeds Ex-PW1/1 was examined nor it had been registered to give

some credibility or authenticity as to the time of execution of such gift

deeds, which could otherwise be easily fabricated and prepared at any

time after the demise of original owner Mst. Fehmida. As regards the

possession of suit house, he argued that possession of the suit house all

along remained jointly with the family of Mst. Fehmida Begum till her

death and thereafter with her brothers, including the father of the

appellant, when she was a minor, therefore, question of delivery of

possession also remained unproved. He further argued that judgments

of all the three Courts below suffer from misreading and non-reading of

evidence, so much so, that even the original Hibanamas Ex-PW1/1 and

PW1/2 were not proceeded before the Court to prove their

authenticity, whereas the witnesses were confronted with their

photostat copies, which were not admissible in evidence, irrespective of

the fact whether any objection to this effect was raised or not.

C.A No.194-P/2010.

Conversely, the learned ASC for the respondent strongly

supported the concurrent findings of the three Courts below on the

plea that there was no instance of any misreading or non-reading of

evidence and the two documents i.e. Exhibit PW1/1 and PW2/2, being

not objected to, were also proved in accordance with law. He further

argued that there was ample evidence available on record to show that

Mirza Nisar, father of the appellant, maintained strained relations with

Mst. Fehmida, the original owner of suit house, therefore, she had

gifted the suit house exclusively in the name of her other brother, Rab

Nawaz vide Gift Deed dated 21.7.1986. However, when the learned ASC

was confronted with the contents of the two Gift Deeds i.e. Exhibit

PW1/1 and PW2/2, he did not dispute that both these documents were

unregistered and the respondent has no plausible explanation for

seeking their attestation from four witnesses for each, out of whom

only one relating to Ex-PW1/1 Hakeem Alauddin was examined, but

even he did not confirm the signature or thumb impression of Mst.

Fehmida over the alleged Gift Deed. He further conceded to the

position that no document regarding the death of other attesting

witnesses of these documents were placed on record to support the

oral assertion of respondent that they all had died before the stage of

evidence in the suit.

10.

We have carefully considered the arguments advanced by

the learned ASCs for the parties and perused the material placed on

C.A No.194-P/2010.

record including the original R&Ps of Suit No.3271 of 2002. According to

the admitted facts of the case Mst. Fehmida was the exclusive owner of

the suit house through registered Sale Deed dated 17.1.1977. She had

five brothers, Mirza Mushtaq, Mirza Nisar, Abdul Latif, Nazeer Ahmed

and Rab Nawaz, and she died issueless. Although, no exact date of her

death has come on record, but one thing is clear that before the

institution of declaratory suit by the respondent in the year 2002, the

two purported Gift Deeds in her favour had not seen the light of the

day in any manner/government record. In addition to it, as per

admission of the respondent in her statement before Court, except

Mirza Nisar all other brothers of late Mst. Fehmida used to live in the

suit house till her death somewhere in the year 1989-90. Moreover,

PW/2 Muhammad Younus, who is stated to be the marginal witness of

Exhibit PW1/2, had also clearly affirmed the fact that the purported gift

in favour of the respondent allegedly made by her husband, Rab Nawaz,

was not signed by him in presence of any person. Further scrutiny of

evidence adduced by Respondent reveals that admittedly appellant was

the only surviving legal heir of Mst. Fehmida from her five brothers, she

was minor at the time of her death and when she became major and

agitated her claim over the suit house, respondent came out with the

story of two Gift Deeds to legitimize her exclusive claim over the suit

house. A man may lie but circumstances do not. In our opinion, the

pleadings of the parties and the evidence brought on record from both

the sides reveal that judgments of all the three Courts below suffer

C.A No.194-P/2010.

from patent misreading and non-reading of evidence inasmuch as the

Courts failed to appreciate the true effect of non-production of original

gift deeds alongwith the plaint as per the requirement of Order VII, Rule

14, CPC, even at evidence stage, and non-examination of attesting

witnesses of the two Gift Deeds. More so, when the evidence of PW/1,

PW/2 and PW/3, was also of no help to the case of Respondent to

prove the authenticity or genuineness of the documents Exhibit PW1/1

and PW2/2, who respectively deposed as under:-

PW-1 Hakeem Allauddin:

“Mst. Fehmeeda Khatoon was ill and was lying on bed. After three-four days

of my visit Rabnawaz brought a written document duly thumb impressed

and signed by Mst. Fehmeeda Khatoon and thereafter I alongwith the other

marginal witnesses signed the same. Rabnawaz had got the signed

document individually at different time from the marginal witnesses.”

PW-2 Muhammad Younas:

“Rabnawaz has not signed the said document before me but the signature

marked-A is his signature as I am well acquainted with his signature.”

PW-3 Muhammad Sherin:

“It is correct that Rabnawaz has not signed the deed in my presence.

Volunteered that he had already signed the same.”

11.

Beside, the evidence of these three witnesses the evidence

of other two witnesses i.e. PW-4 Gul Bibi/respondent and PW-5 Shah

Nadir further reveal that they were interested witnesses installed for

the purpose of justifying the execution and genuineness of the two

documents i.e. Ex-PW1/1 and PW1/2. However, they also failed as their

evidence was not confidence inspiring enough to prove the execution of

these two documents. Similarly the evidence of Hand Writing Expert

was of no avail as all the documents sent to him; firstly, came from the

C.A No.194-P/2010.

possession of the respondent; secondly, the comparison of Photostat

copies with the originals was not warranted by law; and lastly such

exercise was not a conclusive proof about the genuineness of ExPW1/1. We, therefore, find much force in the arguments of the learned

ASC for the appellant that concurrent findings of the three Courts

below suffered from misreading and non-reading of evidence, which

resulted in miscarriage of justice to the appellant, thus open to

interference.

12.

At the cost of repetition, we may observe that the claim of

respondent over the suit house is based on and subject to the validity of

both documents Exhibit PW-1/1 dated 21.7.1986 and PW-1/2 dated

02.8.1995, thus, the execution of these two documents was to be

proved independently. In other words even if the execution of first

document Exhibit PW-1/1 was presumed as valid and genuine, still the

validity and genuineness of the other document Ex.PW-1/2 was to be

proved independently, but the respondent did not even bother to

produce this original document in Court.

13.

Had it been a case of genuine gift in favour of respondent

then there was no justification for the respondent to withhold

production of these documents for such a long period before filing the

suit against the appellant when all the attesting witnesses as per her

claim except PW/1, have expired. In this regard, mere oral assertion of

the Respondent about the death of attesting witnesses of the two

C.A No.194-P/2010.

documents had not absolved her of the legal burden to prove their

death with some documentary evidence or atleast by examining some

other independent witnesses in this regard. It also smacks of some foul

play that instead of following usual practice of having two attesting

witnesses of documents Ex-PW1/1 and PW1/2, these documents

contained attestation by four witnesses at a time and for this reason

too possibility of manipulation/substitution/subsequent addition of

other two witnesses cannot be ruled out.

14.

Indeed, if a document in the form of memorandum of gift

has been executed between the parties (donor and donee) as an

acknowledgment of past transaction of oral gift, its non-registration will

not have much bearing as regards its authenticity or validity, but the

other important thing is the proof of fulfillment of three conditions of a

valid gift “offer”, “acceptance” and “delivery of possession”. Reverting

to the facts of the present case, we find that neither PW-1 Hakeem

Alauddin, who was the only witness of first gift document Ex-PW1/1,

had said anything about the fulfillment of these three conditions of gift

between the parties in his presence, nor the other two witnesses, PW-2

Muhammad Younas and PW-3 Muhammad Sherin of second gift

document Ex-PW1/2 have deposed, whether the performance of these

ingredients of gift, oral or otherwise, had taken place in their presence.

Even the evidence of PW-4 Mst. Gul Bibi in this context is hearsay as

regards the first document of gift and shaky to the extent that in her

C.A No.194-P/2010.

deposition, she has admitted that atleast three other brothers of Mst.

Fehmida Begum, Mirza Mushtaq, Mirza Abdul Latif and Mirza Nazir

Ahmed, continued to live in the said house till their death. To sum up,

virtually not a single witness from the side of respondent validly proved

the performance of these three prerequisites for a valid transaction of

gift in respect of the suit house.

15.

The upshot of the above discussion is that this appeal is

allowed in terms of the short order already passed in this case.

Peshawar,

the 18th December, 2015.

Approved for reporting.

2Čا>»ͅ

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